The road to patent law harmonisation

12 July 2011

On 5 and 6 July, a group of European delegates (from Denmark, France, Germany, the UK and the EPO) gathered in Tegernsee (Germany) at the EPO’s invitation for an informal meeting with the heads of the US and Japanese Patent Offices to explore possible ways of moving towards international patent law harmonisation. Some of you may think it a nice dream to reflect on a global patent system, but this sensitive topic has already been the subject of much debate, and others may wonder why we decided to discuss it further.

The first and obvious answer is that the greater the need to facilitate the international protection of inventions, the more we must simplify the patent system and minimise the differences between national and regional frameworks. These days, the discrepancy between an increasingly knowledge-based globalisation of the economy and the current mosaic of patent laws is hardly justifiable. To reach our goal, we have to work at different levels. Procedures and practices have already been discussed in an important forum, namely the so called IP5 (made up of the US, Japanese, Chinese and Korean offices and the EPO, which deal with 85 to 90% of the world’s patenting activities) for several years now. But as long as the legal frameworks of our systems differ, there will be limits to how far we can go.

Moreover, the impressive legislative activity recently seen in the US, which should be completed next autumn, has given the process a new boost. As you may know, one of the main changes envisaged by the US reform is a switch from the first-to-invent to the first inventor-to-file principle. It is still not entirely clear whether this move will facilitate international harmonisation and that is why the group which recently met informally decided to continue its discussion at a technical level with a view to assessing the changes it might entail. Of course, this technical exercise has limited objectives and modest ambitions, but its work might prove very useful in any future debates in other settings.

My feeling is that Europe, which is already engaged in one major project, the Unitary Patent, is ready to join other regions in playing a leading role in this harmonisation process, just as it has done in the past. Also, if the process is to succeed and gain the support of the users of the European system, which after all is quite stable and offers them a good degree of legal certainty, it is, in my view, of the utmost importance that the advantages of international harmonisation be highlighted in a debate based on solid evidence which strikes the necessary balance between the interests of users and third parties and eventually leads to a genuine simplification of the system.

The EPO understands its role in this process as that of a facilitator and a provider of technical expertise. Patent law harmonisation may still seem to be a long way away, but we can improve things step by step as we move towards that ultimate goal.

Benoît Battistelli

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2 comments on The road to patent law harmonisation

  1. Mikk says:

    Any news regarding third party observation also?

    • Moderator says:

      Patent law harmonisation could cover a wide range of issues. During this explanatory phase, it has been decided to focus on the main points but without prejudging what could be the final package. According to our information, the third party observation issue has been addressed in the current US patent reform under discussions, which could help its integration in a broader prospective.

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